Sir John Beverley Robinson & Private Property Rights in Upper Canada: The Good, The Bad, and the Ugly (Pt 2)
PART TWO: "The Bad & The Ugly"
As Chief Justice of Upper Canada, Sir John Beverley Robinson presided over cases involving property, commerce, and transportation laws. In this part, we'll examine "The Bad & The Ugly" of Robinson's time on the bench. While he was a man of his time and so responded according to the changing needs of society, the result ultimately undermined private property.
By deferring to Upper Canada's legislature when the common law was inept at meeting the growing complexities of society, Robinson (who wasn't the only judge to do so, and Upper Canada was far from the sole jurisdiction to do this) set in motion a process that would empower commercial and populist interests at the expense of private property owners.
Additionally, Robinson held "progressive" views for the time. He interpreted legislative mandates broadly, giving officers, politicians, and institutions considerable leeway in the name of the "public interest." This viewpoint was undoubtedly influenced by Robinson's belief in the Blackstone doctrine that, in essence, "we are the government." That the State's interests are society's interests. With this view, we can determine the bad and the ugly in Robinson's legal thought. Consider the role of squatters.
Without cultivating the land, the Crown had declared the area of modern-day Ontario rightfully theirs. This belief led to Sir John Beverley Robinson's rulings against so-called "squatters." Individuals who settled on lands without permission were considered trespassers. In Henderson v. Seymour (1852), Robinson expressly disapproved of the idea that settlement granted pre-emption rights. He ruled according to colonial circumstances rather than abstract Lockean principles.
Robinson would have been aware (and well-educated) of John Locke's argument that Englishmen created property rights from "mixing their labour" with the land. Setting aside the Indigenous people already living there (this is the 19th century, remember), the virgin territory should have been considered God's land, available for the taking. But Robinson deferred to the colony's reserved land scheme. In Fitzgerald v. Finn (1844), Robinson specifically ruled that one could not settle on Crown land. He argued that changing the reserved land system would undermine existing property titles granted on that understanding.
In Dean v. McCarty (1846), Robinson departed from English property law and refused to hold McCarty liable for damages caused by a fire. Since McCarty used the fire to clear land for cultivation purposes, Robinson emphasized the public good, departing from strict liability and calling the whole affair an act of God.
We saw in the previous part how Robinson's departure from traditional English common law could serve community interests. What was relevant in the Mother Country wasn't always appropriate in colonial frontier society. But, a willingness to adapt legal principles to the practical needs of Upper Canada could go both ways. An emphasis on the "public good" could – and would – create unintended consequences.
One such way was in Gardiner v. Gardiner (1832). The lands of a deceased debtor were about to be ceased without involving the heir. Robinson said that was fine; contrary to traditional common law principles, he interpreted the legislative statute as emphasizing commercial interests. In his ruling, Robinson argued that since Upper Canada never had a feudal system, the heirs had no legal interest in the estate. He said including heirs would be impractical and detrimental "to secure creditors in the colonies and to advance trade."
Gardiner v. Gardiner represented a substantial shift in the concept of land. Whereas, in traditional common law, the rights of quiet enjoyment took precedence over the rights of use, Robinson's decision reflected an inversion of that Western tradition. Like elsewhere in the British colonies and America, ruling elites, businessmen, and the populist masses were aligned in their interests. Private property rights were yielding to legislative acts designed to promote commercial interests.
Robinson's decision in Gardiner v. Gardiner is no small matter. It marked a fundamental change in the treatment of land. Robinson took a revolutionary step against traditional common law principles by assimilating realty to personalty. Land, once regarded as constitutive of wealth, status, and the birthright of future generations was now treated like personal property.
Even Robinson considered this ruling "subversive." It wasn't just a departure from the old law but a renunciation of the established order underlying it. It wasn't just the legislature statute either; Robinson could have looked for and found competing interpretations. But he chose to depart from centuries of traditional common law.
This shift in approach implied that property, although still important and deserving of judicial protection, had a different nature—utility and comparative social value. Even when Robinson seemingly adhered to traditional law, it was evident that his respect for private property rights was not absolute. Context and consequence were essential to Robinson. He realized his decisions had an impact beyond individual litigation. The broader implications of his rulings influenced Robinson's belief that the rights of property owners needed to align with the common good.
And what was the common good? For Robinson, it was finding a balance between enforcing literal meanings in the law and allowing for flexibility to accommodate commercial practices – even when such practices violated private property rights. For this reason, Robinson, initially a fan of the jury system, came to loathe it as a backdoor to democratic populism in the legal system.
How Bad Was The Bad?
Sir John Beverley Robinson was a man of his time. A Tory liberal, he saw Upper Canada's economic development as crucial but detested the kind of free competition one found in the United States. He encouraged investments in public utilities and would even overturn jury verdicts (such as in Kerby v. Lewis [1841]) when he felt the consequences would harm Upper Canada's early Crown corporations.
Robinson argued for "exclusive franchises" to promote public interest and prevent – what he saw – as the adverse effects of free markets. In particular, he thought transportation was the proper domain of the State. It would secure the "safe transmission of mails," and generate revenue for the colonial government.
In R v. Davenport (1858), Robinson defended Crown corporations and their monopoly statuses. He argued that one could not compete with a government franchise as it would lead to uncertainty and abuse.
In Upper Canada, the colonial legislature chartered numerous business corporate monopolies. Robinson used the law to regulate these new corporations' precise nature and power. He saw his work – and theirs – as critical to the colony's economic development.
Ironically, this fear of free competition and belief in the power of government-granted monopolies kept Upper Canada a colonial backwater. At the same time, the United States entered a period of unparalleled growth.
Robinson's belief in the "public good" translated into sympathy on the bench for these new enterprises. He declined to apply the Bubble Act (an English law restricting corporations from certain activities). In Bank of Upper Canada v. Bethune (1835), he ruled the Act didn't apply to colonial corporations created for the "public good."
Robinson followed the "Grant" theory of corporations. He considered them entities created by the legislature for a specific purpose. A corporation had no natural existence outside the law. It was a legal construct established for the "public good." Because of this, he argued corporations required more relaxed regulations. In Bank of Upper Canada v. Widmer (1832), he took a broad interpretation of the bank directors' activities.
The Ugly
Sir John Beverley Robinson fought in the War of 1812, serving with Isaac Brock and fighting at the Battle of Queenston Heights. After the war, security concerns prompted the construction of Upper Canada's first major public projects – the canals. The Welland Canal was chartered in 1824, and the Rideau Canal was authorized a few years later to serve both military and economic goals.
Because of the military significance of linking the Ottawa River with Lake Ontario, the Rideau Canal was primarily financed by London. On the other hand, the Welland Canal was the product of a direct investment from the colonial government. While an American entrepreneur fronted most of the money, circumstances locked him out of the decision-making (despite his familiarity with canals).
In later posts, I'll explore the story of the Welland Canal and its role in the "downfall" of the Family Compact and the cause of the 1837 Upper Canada Rebellion. For now, I'll focus on the legal challenges of canal construction in Upper Canada.
The main issue was expropriating private lands to build these engineered channels. Robinson consistently demonstrated concern for the canal projects and didn't want to jeopardize them by being a private property rights absolutist.
In Phillips v. Redpath (1830), where the defendant was involved in constructing the Rideau Canal, Robinson emphasized the "public welfare." Since the canal would spur economic growth, one must sacrifice their "private interests" for the greater good.
In Malloch v. Principal Officers of Her Majesty's Ordinance (1846), where land was expropriated for the Rideau Canal, Robinson interpreted the defendants' power of seizure broadly.
In Commissioners of Public Works v. Daly (1849), he refused to apply compensation legislation favouring a village landowner. The landowner claimed compensation for property depreciation due to the Cornwall Canal, but Robinson considered such claims unreasonable and detrimental to public improvements.
Canals symbolized change and the promise of prosperity through industry and capital. People increasingly began to see one's absolute private property rights as traditional "pre-industrial" values. While Robinson and the legal zeitgeist at the time still emphasized one's right to private property, legal decisions made in the name of "progress" would undermine this foundational block of Western society.
Parallel to canal projects was the development of modern roads. The legislature chartered companies to build and improve existing roads. Robinson routinely protected these chartered companies by limiting their legal obligations and shielding them from litigation.
For example, in Nichols v. King (1849), he emphasized – what we may call today a "public-private partnership" – chartered companies improving roads for the public good. He didn't want to encourage lawsuits against them.
In Stewart v. Woodstock and Huron Plank and Gravel Road Company (1858), Robinson rejected the idea that a road company should be responsible for a toll gate destroyed in a snowstorm. In R. v. Woodstock and Dereham Plank and Gravel Road Company (1859), the road company made an existing junction impassable by its road construction. Robinson declined to find nuisance against the road company based on the technicalities of a statute.
While roads and canals were crucial in economic development, they paled compared to the 19th-century railway boom. The railway came to Upper Canada in the late 1830s, expanding into a full-scale boom by the 1840s and 50s.
We can mark this period by its extensive charter-granting, land speculation, railway construction, and the numerous legal questions raised by this new technology. Robinson aimed to define the duties and responsibilities of railways "as early as possible."
Robinson said he used precedents from English law and U.S. Railway experiences to guide him. But when examining his record, despite the availability of precedents, Robinson infrequently relied on them in his railway decisions.
English statutes were more burdensome on railway companies. Robinson wanted to promote the interests of the colony and its development, no doubt influenced by the close American competition, so he often deviated from the English examples.
Upper Canadian railway charters typically allowed for private land expropriation by railway companies, with compulsory arbitration to settle disputes over compensation. Robinson criticized compulsory arbitration, believing that third-party arbitrators were overvaluing property at the expense of railway companies.
In Great Western Railroad Company v. Baby (1854), Robinson rejected a £10,000 valuation for two lots along a proposed rail line. He said the price failed to account for the substantial increase in the value of the owner's adjacent non-expropriated property due to the railway. He argued that upholding the valuation would force the railway company to pay a ruinous price for the advantages it had created at its own expense.
In "The Good," we saw how Robinson was willing to broadly interpret contracts if it meant conflict resolution. But when it came to railways or the "public good," this Robinson failed to show.
In Jarvis v. Dalrymple (1853), he highlighted the importance of holding parties to the terms of their contracts to maintain confidence in "executing crucial works" for the colony. In Duke and Wife v. Great Western Railway (1857), he refused to apply standard rules regarding knowledge, emphasizing the public's desire for rapid travel.
In Ward v. Great Western Railway (1856), Robinson defended the railway against obstruction claims. He asserted that the railway was authorized by statute and that individuals lacked the right to bring an action to court unless they could demonstrate specific, distinguishable damages.
Robinson also addressed cases related to the running of trains, particularly the issue of sparks causing brush fires. While he required railway companies to keep their lines clear of combustible materials, he refused to hold them liable for fires. In Hewitt v. Ontario, Simcoe and Huron Railroad (1854), he expressed limitations on what railway companies should be expected to undertake in preventing accidents.
Robinson even went as far as to rule that the burden of loss from fires caused by sparks from a train is on the farmers. As indicated in Hill v. Ontario, Simcoe & Huron Railroad (1855), Robinson clarified that while having the right to use their property, farmers needed to accept the risk associated with railways.
The Tyranny of the Public Good
Of course, Robinson's rulings on railways weren't all "Ugly." He supported safety measures and limiting the train's speed near busy roads and population centres. But, like with "The Bad," Robinson's refusal to be a private property absolutist would cause long-term consequences.
These decisions, made by many judges at the time, set into motion legal standards that still haunts us today. Later, when smokestacks were more common and leaving soot on farmers' crops, judges would argue that issuing an injunction wouldn't be in the "public good."
While conventional wisdom says Robinson found a balance between private property and commercial expansion, from the hindsight of the 2020s, it's hard to take this viewpoint seriously. Especially as demagogue politicians speak about limiting our liberty and property rights in the name of "climate change."
If greenhouse gas emissions are the cause, then global warming directly results from these 19th-century legal decisions made for the "public good."
As mentioned, Robinson initially respected the jury system, only to change his mind as he aged. By 1852, Robinson was cynical about juries. He decried the democratization of jury selection by extending eligibility to (what amounted to) lower-IQ males. These changes, introduced by the Reform government, led to concerns that juries were easily manipulated and prone to favour the poor against the rich, justice be damned.
Robinson never openly disavowed a civil jury, but he typically set aside jury verdicts he considered financially harmful to railway companies. He supported jury verdicts he deemed reasonable and not overly unfavourable to railways.
Of course, it's unfair to paint Robinson as a "shill" for railway companies. His concern was about corporate solvency, the colony's transportation network, and the overall general welfare of Upper Canada.
The winners in Robinson's judicial strategy often belonged to his social group, the Family Compact. The losers were often from less powerful strata, such as squatters, private businessmen competing against public corporations, and small farmers affected by railway-related damages.
Robinson's legal approach was inconsistent, driven by a desire to shape laws in favour of development. He favoured strong private property laws except when he didn't. His decisions reflected a balance between promoting economic growth and safeguarding the Family Compact's interests.